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On the morning of Dec. 7, 1941, Joseph P. McDonald manned the switchboard at Fort Shafter in Hawaii when he received the alarming message that radar had detected a large number of planes approaching from the north, heading fast for Oahu.
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Motorists who use the Pango mobile app to pay at parking meters in Scranton will get reimbursed for any inadvertent overcharges since Sept. 1, the new operator of the city’s parking system said.
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However, he and another expert said the challenges could succeed anyway if a city zoning board rules against a proposed expansion for sound reasons because it is unlikely a higher court will overturn that decision.

In general, zoning boards are required to decide cases on the facts presented. The motivations for challenging a request for a variance or other zoning exceptions should not be the basis for denying or upholding a challenge, both experts said.

"It adds an interesting element to it, but when you get down to it" a challenge succeeds or fails based on facts, not the motivation for a challenge, said attorney Gregg I. Adelman, who handles land-use cases for Kaplin Stewart in Philadelphia.

Variances and exceptions are like waivers. Under certain circumstances, zoning boards have the right to grant them so a development can proceed even when it does not meet all requirements in the city zoning ordinance.

A typical variance request might entail asking the Board of Zoning Appeals for permission to build a building closer to the edge of a property than allowed under the ordinance. A city council automatically has the right to challenge variance requests.

Though no one can recall if that ever happened, council solicitor Boyd Hughes suggested it should during a council meeting Thursday. Mr. Hughes recommended the legislative body oppose future requests for variances by the University of Scranton outside the school's "institutional district." Councils have the right to challenge such requests before zoning boards. He also recommended the council oppose any plan by a nonprofit to expand onto land that is currently taxed.

Council President Janet Evans said the council would follow his advice.

The issue of untaxable nonprofits is a touchy one statewide, especially in cities where nonprofits are concentrated. Their presence removes many properties from real estate tax rolls. In cities where expenses are higher because of full-time police and fire departments, the inability to tax nonprofits means higher taxes for remaining taxpayers.

The council's planned opposition to zoning variances comes after the university challenged the city's new 15 percent parking tax in Lackawanna County Court. The university argues it is a charitable institution under state law, does not earn a profit from its parking spaces and is thus not subject to the tax.

"We're going to proceed with our lawsuit against the city and prove our tax-exempt status," he said. "It's not our tactic to get into a battle in public. We're going to battle in court and go from there."

Mr. Adelman said he expects a nonprofit's lawyer might bring up council's blanket opposition in any legal case as evidence of prejudice against the nonprofit, but that doesn't prevent the council from raising legitimate legal arguments that could be used to deny a variance.

Attorney Daniel P. Dalton, a top land-use lawyer in Michigan, agreed challenges before zoning boards will generally succeed or fail based on facts, and will hold up because zoning boards have wide latitude to decide cases.

Higher courts do not like to act as "super zoning boards" and overrule zoning boards, Mr. Dalton said.

But the council's decision to appeal zoning cases only for nonprofits could raise questions about whether they are being treated differently or unfairly, which is illegal under the Constitution's equal protection clause, he said.

He used the example of cities whose officials said they would no longer allow the construction of Chick-fil-A restaurants after its president publicly said the company would continue to fund anti-gay organizations.

The officials of those cities later backed off because they realized they could not stop construction for such reasons, he said.

Mr. Adelman said things might be different if the city council must decide on land use, as sometimes happens. For example, requesting a land use that requires amending the zoning ordinance would require council to vote on the amendment.

Perhaps in amendment cases, the council's position on variances could be seen as evidence of bias, he said.

Board of Zoning Appeals Chairman Jim Williams said the board would consider each application on its own merits regardless of the council's position.

"We have to take each case as it comes when it comes," Mr. Williams said. "They can all show up. Attorney Hughes is welcome to speak before the board anytime. Boyd Hughes could come; so could the council, the mayor."

The threat to challenge university construction and tying it to its nonprofit status is not the first.

In 2010, Mrs. Evans said the council would only grant an easement to allow the university to build a single dormitory taller than the zoning ordinance allows if the university increased its annual payment in lieu of taxes from $110,000 to $250,000.

The university balked, changed its plans to build two dormitories that met the height requirement and upped its payment to $175,000 based on its previous negotiations with Mayor Chris Doherty.

Last month, council said it would target seven of the city's largest nonprofit institutions to voluntarily contribute money to the cash-strapped city. The others besides the university are Marywood University, Lackawanna College, Johnson College, the Commonwealth Medical College, Allied Services Integrated Health System and Geisinger Community Medical Center.

Those seven nonprofits would be asked for contributions as follows: in 2013, one-quarter of 1 percent of annual revenue; in 2014, one-third of 1 percent; and in 2015, one-half of 1 percent, Mrs. Evans had said.

The contributions, called payments in lieu of taxes, or PILOTs, are one of the alternative sources of revenue that are being sought to defray tax hikes in the revised recovery plan that was adopted Aug. 23.

If the seven nonprofits give as much as the mayor and council want, the city would collect $1.3 million in 2013, $1.95 million in 2014 and $2.4 million in 2015, according to the recovery plan.

The city this year has received almost $198,000 in PILOTs, including $175,000 from the University of Scranton and $22,780 from the Scranton Housing Authority, officials said.

Efforts to reach Mr. Doherty and representatives of Marywood University, Lackawanna College and Johnson College were unsuccessful Friday.

Allied Services Integrated Health System spokesman Jim Brogna said his company could not immediately respond to Mr. Hughes' comments.

Geisinger Community Medical Center spokesman Matt Van Stone and Commonwealth Medical College spokeswoman Anne Green said their institutions had no comment on Mr. Hughes' remarks.

Contact the writer: bkrawczeniuk@timesshamrock.com

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